Citation Nr: 9821604
Decision Date: 07/16/98 Archive Date: 07/23/98
DOCKET NO. 97-27 388 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for degenerative joint
disease of the cervical spine.
2. Entitlement to service connection for degenerative joint
disease of the lumbar spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L.A. Howell, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1952 to
September 1955.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, which denied entitlement to service connection for
degenerative joint disease of the cervical spine and for
degenerative joint disease of the lumbar spine.
A videoconference hearing was held before a Member of the
Board sitting in Washington, D.C., and the veteran in St.
Petersburg, Florida, in March 1998. The undersigned Member
was designated by the Chairman of the Board to conduct such a
hearing. A transcript of the hearing testimony has been
associated with the claims file.
REMAND
The Board has a duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1998); 38 C.F.R. § 3.159 (1997). This duty to
assist involves obtaining relevant medical reports and
examinations where indicated by the facts and circumstances
of the individual case. See Abernathy v. Principi, 3 Vet.
App. 461 (1992); Roberts v. Derwinski, 2 Vet. App. 387
(1992); Schafrath v. Derwinski, 1 Vet. App. 589 (1991);
Littke v. Derwinski, 1 Vet. App. 90 (1990); Murphy v.
Derwinski, 1 Vet. App. 78 (1990).
The veteran contends, in essence, that he is entitled to
service connection for degenerative joint disease of the
cervical spine and for degenerative joint disease of the
lumbar spine. Specifically, he maintains that he fell and
injured his back in service and should be service connected
therefor.
Notwithstanding the veteran’s contentions that he injured his
cervical spine and lumbar spine in May 1953 during the same
time he fell and injured his left knee, a review of the
veteran's service medical records reveals no complaints,
symptomatology, or findings of a back disability. The
service medical records do indicate that he sought treatment
in May 1953 for a lacerated left knee, noting that he had
fallen while walking down the bow-ramp of a LST. Apparently,
he tripped over a projecting piece of steel and fell down the
ramp landing with most of his body weight hitting the left
knee. Physical examination at the time of the injury showed
a 5cm laceration of the left knee but no evidence of a
fracture or tendon injury, although there was considerable
discomfort extending the leg. The remainder of the physical
examination was essentially negative. Subsequent medical
records show treatment for testicular trauma, hemorrhoids,
and an anal fistula, but there is no indication of any
inservice history of back pain of any sort. Further, the
September 1955 separation examination report demonstrates a
normal clinical evaluation of the veteran’s spine and other
musculoskeletal systems.
Post service medical records reveal that the veteran was
treated in the 1960s for tonsillitis, prostatitis, residuals
of trauma to right testicle, facial injuries, and acute
pharyngitis. In 1971, nearly 16 years after service
separation, he complained of vague chest, arm, and leg
soreness. He was noted to have a past history of herniation
of the lumbar spine but no surgery.
In October 1977, the veteran was apparently admitted to the
hospital for multiple injury and rule/out fracture. The
diagnosis was acute exacerbation of chronic degenerative
spine disease. At that time, the veteran reported that he
had experienced a “severe back injury” in service and since
then had had multiple pains and injuries of the back with
radiation down the leg and recently ascending into the neck
and upper extremities with costosternal burning. A follow-up
note indicated that X-rays showed a very advanced stage of
destruction and degeneration of the spine and reflected that
it was “possibly” related it to an injury the veteran had
in service. Specifically, the veteran was noted to have
scoliosis, possibly traumatic, with collapsing of all the
lumbar vertebra at L3, L4, and L5. Additional medical
evidence suggested that the veteran had undergone multiple
treatments in the past, including a myelogram, without
success. Dr. Stamelos was noted as a consultant.
In March 1980, the veteran was involved in a motor vehicle
accident and sustained a neck injury. The medical evidence
reveals that he was treated for a cervical strain with
tendonitis for over a year after the injury. At the time of
the injury, he was noted to have osteoarthritis of the
cervical and lumbar spines and degenerative lumbar disease.
In April 1983, he sought treatment for low back pain after
falling up a flight of steps with a 35-pound bag of laundry.
At that time, he related a long history of back pain since
the 1960s. In February 1984, he sought treatment for severe
right neck pain. At that time, he indicated that he had been
involved in a slight automobile accident in 1980 or 1981 and
was subsequently hospitalized and treated with traction,
diathermy, and physical therapy. Apparently, the week
previously the neck pain increased in severity and his right
arm had become weak. Also significantly, he reported a 20
year history of low back pain (placing it in the 1960s) with
a myelogram done and a diagnosis of lumbar spondylosis. In
May 1984, as part of a neurological work-up, he related that
he had had arthritis since the 1960s. During this relevant
timeframe, there appeared to be no reported connection
between his back disability and service.
Subsequently, the evidence shows that the veteran sustained a
fall in March 1992 and subsequently underwent a lumbar
laminectomy, diskectomy, foraminotomy of L4-L5 and L5-S1 in
June 1992 by Spiros G. Stamelos, M.D. At that time, Dr.
Stamelos indicated that the pre-operative diagnostic studies
showed severe pathology which was apparently a work-related
chronic condition with a work-related acute aggravation. The
June 1992 hospital discharge summary reveals that the
veteran’s back pain began after he fell down. A past medical
history of back pain was noted since 1962.
In a May 1993 to-whom-it-may-concern letter, Dr. Stamelos
indicated that the veteran had been under his care for a
work-related neck injury since March 1992. He indicated that
the veteran’s cervical spine and lumbosacral spine
disabilities created a very limited and disabling problem.
He also noted that the veteran had a severe, failed-type of
cervical spine syndrome which required daily physical therapy
just to maintain him. In an October 1994 to-whom-it-may-
concern letter, Dr. Stamelos indicated that the veteran fell
in a hole while working and sustained a severe injury to his
lumbosacral spine that caused significant permanency and
discomfort. He stressed that in spite of surgery, the
veteran had severe degenerative changes from L1-S1 and that
he was still disabled from the discogenic problems related to
the fall in March 1992. He also related that the March 1992
fall aggravated a cervical problem.
In April 1996, the veteran filed a claim for entitlement to
service connection for cervical spine and lumbar spine
disabilities.
In an August 1996 letter, Dr. Stamelos indicated that the
veteran had been a patient of his for many years. He opined
that the veteran had back and neck problems that were more
severe and more progressed than one would expect from a man
of his age and occupation. Dr. Stamelos reflected that the
veteran fell down a ramp while in the service which
“probably” explained the lower back and cervical spine
trauma that was significantly advanced with post-traumatic
arthritic changes, degenerative changes and osteophyte
formation. He concluded that the veteran was 100 percent
disabled and had been for many years which was “probably”
attributable to his injuries in the military in and about
1953.
In a September 1996 letter, Gerald E. McCabe, M.D. recalled
that the veteran had periodically been his patient since
1961. He included some medical records and indicated that he
was attempting to obtain additional records from the 1950s
but that it was taking some time. He related that he had
treated the veteran for complaints of testicular pain in 1961
and, at that time, the veteran had given a history of being
injured in 1953 and reinjured in the same place in 1954. He
also suggested that at the time of discharge the veteran was
told to be examined for his left knee and lumbar injury at
the VA Hospital in Chicago and that the veteran had been
treated at Northwestern University Hospital. In a December
1997 statement, the veteran reported that Dr. McCabe had died
in October 1997 and that they were still searching for his
records for the 1956-1960 period.
In a July 1997 letter, Dr. Stamelos stated that he had
treated the veteran for approximately 20 years. The veteran
had related to him that he sustained a serious back injury in
service which was first considered to be minimal since the
veteran was in his youth and in excellent condition.
However, he indicated that the veteran had received
treatments from 1962 to 1980 and had been treated by him
since the late 1970s. He concluded that the veteran’s
condition was very serious and opined that the lumbosacral
spine disorder was service-related.
In a February 1998 letter, attorney Jerome Feldman related
that he had represented the veteran since 1959 and
specifically in 1960 when the veteran was injured in an
automobile accident. However, the Board notes that no
attempt has been made to associate those records with the
claims file.
The Board also notes that the veteran submitted a legal
document entitled Request to Admit Facts apparently used in
connection with an arbitration proceeding against an
insurance company over an undisclosed claim which asked the
veteran to admit that he was hospitalized in 1960 at
Ravenswood Hospital for back pain diagnosed as a service
related injury and admit that he was hospitalized in 1970 on
two occasions at Martha Washington Hospital for low back
pain. A handwritten “Yes” appears on the document beside
each question.
Given the facts as summarized above and the nature of the
veteran’s claim, it is the decision of the Board that a
medical opinion addressing the contended causal relationship
between his alleged in-service back injury and any current
back pathology is warranted. See Hyder v. Derwinski, 1 Vet.
App. 221 (1990); Green v. Derwinski, 1 Vet. App. 123 (1990).
Further, it appears that additional records may be available
and an attempt should be made to obtain those records.
In view of the foregoing, this case is REMANDED for the
following actions:
1. The RO should contact the veteran and
ask him to provide the names and
addresses of any medical care providers,
VA or private, who have evaluated or
treated him for symptoms related to a
cervical or lumbar disorder not already
associated with the claims file,
including records at the VA hospital in
Chicago in the 1950s, Dr. McCabe’s 1956-
1960 records, records related to a 1960
motor vehicle accident, Ravenswood
Hospital records from 1960, Martha
Washington Hospital records from 1970,
and records from Dr. Gonstead in
Montfort, Wisconsin from 1959-1960. The
approximate dates of such evaluation or
treatment should be reported, and the
veteran should provide the necessary
releases for any information not already
requested.
After obtaining the appropriate signed
authorization for release of information
forms from the veteran, the RO should
contact each medical care provider
specified by the veteran, including those
mentioned above, to request specifically
any and all medical or treatment records
or reports relevant to the above
mentioned claims. All pieces of
correspondence, as well as any medical or
treatment records obtained, should be
made a part of the claims folder. If
private treatment is reported and those
records are not obtained, the veteran and
his representative should be provided
with information concerning the negative
results, and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1997).
2. The RO should solicit from the
veteran a report of his post-service
employment experiences. The information
provided should also include whether
there might have been pre- or post-
employment physicals that could be
obtained from past employers. It should
also be ascertained, with the assistance
of the veteran and any employers, whether
there is any workmen’s compensation claim
pending, or award made, secondary to back
pathology. If so, documents associated
therewith should be requested.
3. The RO should afford the veteran an
opportunity to submit additional evidence
in support of his claim. He should be
instructed to consider whether insurance
physicals or other records of treatment
over the years are available, and to
provide information to be used in
attempting to obtain the records. He
should also be instructed that he could
submit statements from service buddies
who may have been familiar with his in-
service injury.
4. The RO should then forward all the
records to a VA orthopedist and
neurologist to determine the relationship
between the veteran’s alleged in-service
injury and his current back pathology.
Specifically, the examiners are requested
to express an opinion as to the following
questions:
i) does the veteran have a current back
disability and what is the most likely
etiology of that back pathology?
ii) if the veteran does have a back
disability, does the evidence make it
more likely than not that the current
disability represents or was the result
of an alleged in-service injury in 1953
or was it due to other back trauma or
injury?
iii) if the veteran’s back disability is
related in part to the in-service injury
and in part to other causes, the
examiners are requested to state an
opinion as to the effect of each factor
in producing the current disability. The
examiners should state the basis for
conclusions as to the etiology of the
veteran's current back disability.
iv) specifically with respect to the
lumbar spine claim, the examiners should
further provide a medical opinion as to
whether the type of lumbar spine
pathology reflected in 1977 could reach
such a level without treatment for over
22 years after the alleged initial in-
service event, or whether the 1977 and
thereafter lumbar spine findings are more
likely due to intercurrent injury.
v) similarly, specifically with respect
to the cervical spine claim, the
examiners should further provide a
medical opinion as to whether the type of
cervical spine pathology reflected in
1980 could reach such a level without
treatment for over 25 years after the
alleged initial in-service event, or
whether the 1980 and thereafter cervical
spine findings are more likely due to
intercurrent injury.
The claims file must be made available to
the examiners for review before the entry
of the opinion. If these matters cannot
be medically determined without resort to
mere conjecture, this should be commented
upon by the examiners.
If, after reviewing the record, it is
concluded that an examination of the
veteran is indicated prior to entering
opinions as to these questions, such
examination should be scheduled.
5. The RO should then readjudicate the
issues of entitlement to service
connection for degenerative joint disease
of the cervical spine and for
degenerative joint disease of the lumbar
spine. In the event the benefits sought
are not granted, the veteran and his
representative should be provided with a
supplemental statement of the case and
afforded a reasonable opportunity to
respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition warranted in this claim. No action is required
of the veteran until he is notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1998), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Veterans Appeals. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1997).
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